Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8494)

ABC SURFACES COMMERCIAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS REMEDIAL CONCRETE AND ACCESS FLOORING ENTERPRISE AGREEMENT 2020-2023

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 2 DECEMBER 2021

Application for approval of the ABC SURFACES COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the ABC SURFACES COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, ABC Surfaces Commercial Pty Ltd, sought approval for an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Remedial Concrete and Access Flooring Enterprise Agreement 2020-2023. The applicant argued that the agreement was made in good faith and met the criteria for approval under the Fair Work Act 2009. The Fair Work Commission was the tribunal tasked with deciding whether the agreement was eligible for registration.

The key legal issue before the Commission was whether the agreement was made in good faith, as required by section 234 of the Act. The Commission had to consider the conduct of the parties during the negotiation process and whether there were any unfair labour practices. Additionally, the Commission needed to determine if the agreement covered all necessary aspects, including the scope of the agreement, the classification of employees, and the terms and conditions of employment.

The Commission found that the agreement was made in good faith, as there was no evidence of coercion, duress, or any other unfair labour practice. The Commission also noted that the agreement comprehensively covered all necessary aspects, including the classification of employees and the terms and conditions of employment. The Commission concluded that the agreement met the criteria for approval under section 234 of the Act.

The Commission approved the agreement and ordered its registration. The applicant and the CFMEU were directed to provide a copy of the agreement to the Commission within 14 days of the decision. The agreement was registered on the date of the decision and became effective from the date of registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established